The Employment Relations Authority has rejected an employee’s personal grievance claims of unjustified dismissal and unjustified disadvantage after finding that the employer never dismissed him.

The employment issue arose after the employee suffered a serious injury whilst working. This injury left the employee unable to recommence work for several months, during which time the employment relationship broke down.

During the course of the injury the employer created a plan for a slow reintroduction of the employee back into the workplace, with the start date depending on when the employee was deemed fit to work. ACC reported that the employee could work for very short periods of time, but the employer deemed it best to wait until the employee was fully recovered and ready to return to work to reinstate the employee in any capacity.

The employee’s occupational therapist then informed the employer that the employee was considering resigning, as he felt that he was ready to return to work and wasn’t being given any opportunity by the employer.

The employer then hired another worker to replace the employee in anticipation of his resignation, but made it known to the employee that work would be available when he was fully recovered.

The employee thought that the hiring of a new employee indicated that he no longer had a job with the employer, and he filed a personal grievance claim of unjustified dismissal.

The Authority decided that the failure to offer the employee work was a disadvantage to him, but decided that it was justified in the scenario. This is because the nature of the work was physical and required focus, both of which were diminished as a result of the employee’s injury.

It was also decided that the employer never actually dismissed the employee and that the employee had misinterpreted the messages sent by the employer. As a result, the Authority could not find that the employee had been unjustifiably dismissed, as no dismissal had ever taken place.

Both of the employee’s claims were rejected, and the employee received no compensation.

If there is confusion around the rights and responsibilities of an employer, it is wise to seek advice from a professional with experience in the area.


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